Aides Say Memo Backed Coercion for Qaeda Cases

By DAVID JOHNSTON and JAMES RISEN

The New York Times

June 26, 2004

WASHINGTON, June 26 — An August 2002 memo by the Justice Department that concluded interrogators could use extreme techniques on detainees in the war on terror helped provide an after-the-fact rationale for harsh procedures used by the C.I.A. on high-level leaders of Al Qaeda according to current and former government officials.

The legal memo was prepared after an internal debate within the government about the methods used to extract information from Abu Zubaydah, one of Osama bin Laden's top aides, after his capture in April 2002, the officials said. The memo provided a legal basis for coercive techniques used later against other high-ranking detainees, like Khalid Shaikh Mohammed, the chief architect of the attacks of Sept. 11, 2001, who was captured in early 2003.

The full text of the memo was made public by the White House on Tuesday without any explanation about why it was written or whether its standards were applied. The memo suggested that the president could authorize a wide array of coercive interrogation methods in the campaign against terrorism without violating international treaties or the federal torture law. It did not specify any particular procedures but suggested there were few limits short of causing the death of a prisoner.

It has been known that the methods used on Mr. Zubaydah and other senior Qaeda operatives stirred controversy in government counterterrorism circles. But until now, it was not been clear that the memo was written in response to the Central Intelligence Agency's efforts to extract information from high-ranking Qaeda suspects, and was unrelated to questions about handling detainees at Guantánamo Bay or in Iraq.

While the memo appeared to give the C.I.A. wide latitude in adopting tactics to interrogate high-level Qaeda detainees, it is still unclear exactly what procedures were used or the extent to which the memo influenced the government's overall thinking about interrogations of other terror detainees captured in Afghanistan and elsewhere.

The officials said the memo illustrated that the Bush administration, in the months after the September 2001 attacks, was urgently looking for ways to force senior Qaeda detainees to disclose whether they knew of any future terrorist attacks planned against the United States.

The memo, which is dated Aug. 1, 2002, was a seminal legal document guiding the government's thinking on interrogation. It was disavowed earlier this week by senior legal advisers to a Bush administration trying to contain the diplomatic and political damage caused by the abuse of prisoners in Iraq. The legal advisers said the memo would be reviewed and revised because it created a false impression that torture could be legally defensible.

In repudiating the memo in briefings this week, none of the senior Bush legal advisers whom the White House made available to reporters would discuss who had requested that the memo be prepared, why it had been prepared or how it was applied.

On Friday, the Justice Department and C.I.A. would not discuss the origins of the memo, but in the past officials at those agencies have said that the interrogation techniques used on detainees were lawful and did not violate the torture statute, which generally forbids inflicting severe and prolonged pain.

The memo was addressed to Alberto R. Gonzales, the White House counsel, and was signed by Jay S. Bybee, then the head of the Justice Department's Office of Legal Counsel. The memo said that the document was an effort to define "standards of conduct" under international treaties and federal law. It concluded that a coercive procedure could not be considered torture unless it caused pain equivalent to that accompanying "serious physical injury, such as organ failure, impairment of bodily function or even death."

The Justice Department was asked to prepare the memo about the time of Mr. Zubaydah's capture in April 2002, the officials said, in an effort to clarify the permissible limits of interrogation because of questions raised by the treatment of Mr. Zubaydah and a few other Qaeda operatives then in custody. It remains unclear what role Attorney General John Ashcroft played in the debate over interrogation techniques or in the preparation of the memo, but Justice Department officials said he did not review it before it was sent to the White House.

Mr. Zubaydah, who managed Al Qaeda's worldwide recruiting system for Mr. bin Laden's training camps in Afghanistan, was one of the first high-level detainees captured following the Sept. 11 attacks on New York and Washington.

The full extent of the tactics used during his interrogation are still not publicly known, but the methods provoked controversy within the C.I.A. and prompted concerns about whether agency employees might be held liable for violating the federal torture law.

That law makes it a crime for an American operating overseas under governmental authority to torture anyone under his control. The tactics also raised concerns at the F.B.I., where some agents were aware of the techniques being used on Mr. Zubaydah.

It is known that some Qaeda leaders were deprived of sleep and food and were threatened with beatings. In one instance a gun was waved near a prisoner, and in another a noose was hung close to a detainee.

Mr. Mohammed was "waterboarded" — strapped to a board and immersed in water — a technique used to make the subject believe that he might be drowned, officials said.

In the end, administration officials considered Mr. Zubaydah's interrogation an example of the successful use of harsh interrogation techniques.

Most notably, he helped identify Mr. Mohammed as the principal architect of the September 2001 hijacking plot and was the source of information about Jose Padilla, who was arrested in May 2002 in what officials said was a nascent plot to develop a dirty bomb using radiological materials.

Since Mr. Zubaydah's capture, another dozen to two dozen high-level Qaeda operatives have been taken into custody in a classified C.I.A. interrogation program.

All of the high-level detainees are being held at secret locations outside the United States. None have had access to lawyers or human rights groups, and the Bush administration has not said how long these detainees will be held or whether they will ever be tried in a civilian or military court.

The Bybee memo, the officials said, was not designed to support the use of aggressive techniques on less important captives held at Guantánamo Bay, Cuba, or on Iraqi captives held at Abu Ghraib and other prisons in Iraq.

In addition, some of the officials said they wanted to explain the background of the memo because they hoped to dispel the impression that Mr. Bybee, now a judge on the United States Court of Appeals for the Ninth Circuit, was somehow a rogue advocate of extreme and potentially unlawful torture tactics. Instead, they said, Mr. Bybee and other lawyers who helped prepare the memo were trying to explore the boundaries of what the law might allow in the context of high-level Qaeda detainees.

The officials said that the memo followed a series of exchanges between the C.I.A. and the Justice Department over the legality of specific techniques used on detainees not long after the Bush administration had decided to keep them out of the American judicial system and treat them as unlawful combatants who would not be protected by the Geneva Conventions, which bar harsh treatment of prisoners of war.

At the time of the Sept. 11 attacks, the Bush administration did not have an established infrastructure or legal framework for handling terrorism detainees. But after the attacks, the administration decided that terrorism should be considered a national security issue rather than a law enforcement matter, and President Bush turned to the C.I.A., rather than the F.B.I., to take the lead in the detention and questioning of captured Al Qaeda leaders.

Mr. Bybee's memo provided sweeping legal authority for a wide range of interrogation techniques to be used on Al Qaeda operatives. To be regarded as torture, the memo said, mental pain also must be caused by "threats of imminent death; threats of infliction of the kind of pain that would amount to physical torture; infliction of such physical pain as a means of psychological torture; use of drugs or other procedures designed to deeply disrupt the senses, or fundamentally alter an individual's personality; or threatening to do any of these things to a third party."

The memo added that the use of drugs under certain circumstances during interrogations would be permitted, as long as their effects fell short of what it described as legally prohibited: the "profound disruption of the senses or personality." The memo then explained at length that the definition of the word "profound" allowed for a broad interpretation of what measures were acceptable short of that.

"By requiring that the procedures and the drugs create a profound disruption, the statue requires more than that the acts forcibly separate or rend the sense or personality, it said. "Those acts must penetrate to the core of an individual's ability to perceive the world around him, substantially interfering with his cognitive abilities, or fundamentally alter his personality."